Tuesday, January 26, 2010

Due Process Cases: Insufficiency of Complaints

When parents disagree with the IEP proposed for their child, with the denial of eligibility for special education, with evaluations conducted by the District, etc, they have the right to present a complaint to initiate "due process" in order to resolve their dispute. The 2004 amendments to IDEA added language specifying the contents of a complaint that is filed to initiate due process. Additionally, language was added that allows school districts (or the responding party) to assert that the complaint was not sufficient; i.e. that it does not include all of the required information. Hearing officers / ALJ's are charged with determining the sufficiency of the complaint. Specifically, the IDEA states that "a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets" these requirements. See 20 U.S.C. section 1415(b)(7)(B).

This places a burden on the filing party, which especially affects unrepresented parents who may be unfamiliar with the requirements and technical aspects of the process. If parents need assistance with this process, it is advisable that they seek out a special education attorney.

What information is required for a complaint to be "sufficient"?

IDEA (at 20 U.S.C. section 1415(b)(7)(A)(ii)) requires the following to be included in the complaint:

  • Name of the child
  • Address of the residence of the child
  • Available contact information if the child is homeless
  • Name of the school the child is attending
  • The Issue / Problem presented: "Description of the nature of the problem of the child relating to such proposed initiation or change..."
  • The Facts: "including facts relating to such problem..."
  • The Proposed Resolution of the Problem
What is a "Notice of Insufficiency?"

Many school district attorneys now have a practice of filing a document, sometimes referred to as Notice of Insufficiency" to assert that the parents' complaint was not sufficient / does not contain all of the required information. Most often, these filings will allege that the complaint did not specify sufficient facts related to the problem, or did not clearly identify what the specific problem is.

An assertion that a complaint is not "sufficient" usually comes down to something subjective, and is not a clear-cut case of required information being totally left out. It usually involves how the information is presented / explained as to the facts, the issue or the proposed resolution.

Here are some examples of arguments we have seen regarding insufficiency of a due process complaint:
  • Not enough facts to explain why the proposed IEP would not meet student's unique needs
  • Issue regarding inappropriateness of goals not clear enough for District to determine what areas Parents believed were not addressed
  • Issues relating to violations of procedural safeguards do not include sufficient facts to clarify basis for the allegations
  • Proposed resolutions do not include information regarding specific amounts sought for reimbursement, compensatory hours, etc
  • Proposed resolutions are not clear as to what prospective program parents are seeking
Sufficiency requirements in many states have increased exponentially the burden on parents filing for due process, and made it much more difficult for parents to go through this process unrepresented, thereby decreasing access to due process. Here in California, this has been the subject of much discussion among the parent-advocacy community. Some school district representatives have a practice of sending out a Notice of Insufficiency on every case, and we have even had one tell us she would be filing such a Notice even though she had admittedly not yet even reviewed the complaint's contents.

In at least one state, action has been taken to attempt to alleviate some of this burden. Click here to access the state of Ohio's information about a settlement agreement reached on this issue. What is informative in the "order of settlement" is the language in regards to what "sufficiency requirements" should mean:

[The IDEA] does not require a due process complaint to reach the level of sufficiency and detail of a complaint in a court of law.
That the purpose of the sufficiency requirement is to ensure that the other party will have an awareness and understanding of the issues forming the basis for the complaint, and
That due process complaints should be construed in light of Schaffer vs. Weast... and Escambia County Board of Education vs. Benton...
IHO's will be instructed that the standard in Schaffer and Escambia for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the standard for reviewing complaints in court.
Ohio also now posts redacted copies of decisions / orders determining sufficiency of complaints, in compliance with the terms of this settlement.

What happens next?

If the responding party files a Notice of Insufficiency, the ALJ / Hearing Officer should rule on whether or not the complaint is sufficient. As stated, this often comes down to a subjective issue - it isn't usually the case that a child's name or address, for example, was left out. Therefore, the ALJ has to look at the complaint itself and determine if there is enough information in the "facts," "issues," and "resolution" to give the responding party notice of the basis for the complaint. If a complaint is not sufficient, the hearing will not go forward until a sufficient complaint is filed, meaning that either the case will be dismissed and have to be refiled, or that the filing party will be allowed by the ALJ / Hearing Officer to amend the complaint.

Can Parents file a Notice of Insufficiency?

Yes. If a school district files a request for due process, the the parent is the "responding party." The school district's complaint is also subject to sufficiency requirements in terms of what information must be included. If a parent / parent's representative believes that the information is not sufficient, he/she can also alert the ALJ / Hearing Officer and ask for a determination of sufficiency.

What about forms, etc for filing for Due Process?

The IDEA requires state educational agencies to develop "model forms to assist parents and public agencies in filing a due process complaint." 34 C.F.R. 300.509. Thus, many school districts / local educational agencies have forms that they provide parents to fill out when a parent disagrees and wishes to file for due process. The state educational agency may also provide such a form. Presumably, such a form would contain boxes or lines for each of the required areas, thereby guiding parents to ensure that all required information is included. Note that just because a school district or state agency provides a form, does not mean that a parent must utilize the form to file a request. Rather, any document that comports with the requirements under IDEA should initiate the process.

Here are some useful links to examples from various state educational agencies:

New Jersey

*note: the links in this list provide a sampling of state pages directly related to due process request forms. For a comprehensive list of state special education department websites in general, check out the list provided by the Council of Parent Attorneys and Advocates at this link.

Parents can seek out additional information from a special education attorney or experienced advocate, their state educational agency, or their local school district.

1 comment:

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    Jim Gerl